NSA Report: Keep the Crown Jewels

President’s commission is only a narrow victory for surveillance opponents

A sign stands outside the National Security Administration (NSA) campus in Fort Meade, Md., Thursday, June 6, 2013.
National Journal
Michael Hirsh
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Michael Hirsh
Dec. 18, 2013, 12:21 p.m.

Don’t give up the crown jew­els of Amer­ica’s sur­veil­lance pro­gram, in­clud­ing bulk col­lec­tion of tele­phone data, but add enough new trans­par­ency and leg­al re­stric­tions to ful­fill the pub­lic’s right to pri­vacy and civil liber­ties. That’s the bot­tom line of a 304-page re­port re­leased late Wed­nes­day by Pres­id­ent Obama’s spe­cial re­view com­mis­sion on the Na­tion­al Se­cur­ity Agency’s con­tro­ver­sial spy­ing pro­grams.

The re­port, titled “Liberty and Se­cur­ity in A Chan­ging World,” sup­plies a nar­row vic­tory to NSA leak­er Ed­ward Snowden and his sup­port­ers, but not much more than that, in that its re­com­mend­a­tions would leave the NSA’s mass sur­veil­lance pro­grams largely in­tact.

Among the im­port­ant changes re­com­men­ded were that the con­tro­ver­sial col­lec­tion of mass amounts of data be con­duc­ted by the private sec­tor rather than the gov­ern­ment; that new rules re­strict the abil­ity of the For­eign In­tel­li­gence Sur­veil­lance Court (FISC) to com­pel tele­phone ser­vice pro­viders and oth­er third parties to dis­close private in­form­a­tion to the gov­ern­ment, and the abil­ity of the FBI to is­sue “Na­tion­al Se­cur­ity Let­ters” com­pel­ling  in­di­vidu­als and or­gan­iz­a­tions to turn over private re­cords; and that a  pub­lic in­terest ad­voc­ate be cre­ated to ap­pear be­fore the For­eign In­tel­li­gence Sur­veil­lance Court.

White House spokes­man Jay Car­ney said the ad­min­is­tra­tion would likely ad­opt some re­com­mend­a­tions and re­ject oth­ers. The ad­min­is­tra­tion has already re­jec­ted the pan­el’s pro­pos­al to sep­ar­ate con­trol of the NSA and Cy­ber Com­mand, but it is likely to agree to its re­com­mend­a­tion to try to come to new agree­ments with for­eign lead­ers on lim­it­ing sur­veil­lance.

On the col­lec­tion of so-called “metadata,” the cur­rent sys­tem  “cre­ates po­ten­tial risks to pub­lic trust, per­son­al pri­vacy, and civil liberty,” the re­port says, adding that it en­dorsed “a broad prin­ciple for the fu­ture: as a gen­er­al rule and without seni­or policy re­view, the gov­ern­ment should not be per­mit­ted to col­lect and store mass, un­di­ges­ted, non-pub­lic per­son­al in­form­a­tion about US per­sons for the pur­pose of en­abling fu­ture quer­ies and data-min­ing for for­eign in­tel­li­gence pur­poses.”

Non­ethe­less, the pan­el em­braced the need to con­tin­ue the NSA pro­grams that use such data for sur­veil­lance, in par­tic­u­lar Sec­tion 215 of the For­eign In­tel­li­gence Sur­veil­lance Act, which au­thor­izes searches of tele­phon­ic “metadata.” And by sug­gest­ing that re­quests for such data col­lec­tion meet only a rather vague stand­ard — “to serve an im­port­ant gov­ern­ment in­terest,” as the re­port says at one point — the pan­el ap­peared to leave the re­com­men­ded leg­al threshold for searches low enough that the NSA would likely be able to con­tin­ue most of what it cur­rently does, even if the agency would have to ask a judge’s per­mis­sion more of­ten.  The re­port also af­firmed the need for Sec­tion 702, which au­thor­izes the search of emails abroad.

The re­port was  pro­duced by a re­l­at­ively in­tel­li­gence-friendly group of former of­fi­cials and leg­al ex­perts con­sist­ing of ex-coun­terter­ror­ism co­ordin­at­or Richard A. Clarke;  Mi­chael  Mo­rell, the former deputy dir­ect­or of the CIA; Geof­frey Stone, a Uni­versity of Chica­go law pro­fess­or; Peter Swire, an ex­pert in pri­vacy law at the Geor­gia In­sti­tute of Tech­no­logy, and Obama’s former reg­u­la­tion czar, Cass Sun­stein.  

Sup­port­ers of the NSA pro­gram say that Sec­tion 215,  which al­lows for va­cu­um­ing of tele­phon­ic data, is needed as a dis­cov­ery tool in or­der to de­tect new ter­ror­ist plots at a time when the threat is far more dif­fuse and harder to un­cov­er.

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